In The Courts

U.S. View May Shift in High Court's Bias Cases

By Allison Stevens

Washington Bureau Chief

Monday, December 8, 2008

The Supreme Court will be ruling on a number of cases in coming months that women's legal advocates consider hugely consequential. Appointments by the Obama administration are expected to affect the political climate surrounding them.

WASHINGTON (WOMENSENEWS)--Title VII is back in the legal ring for two more rounds with the nation's nine Supreme Court justices in cases that will be decided by the end of June.

Title VII is part of the 1964 civil rights law that bans discrimination against sex, race and other groups.

On Wednesday the law will be tested in a case asking when mothers' right to equal retirement pay and benefits begin.

Title VII was also raised in October when employees sued for suffering retaliation after alleging sexual harassment as part of an investigation into other co-workers' complaints.

Attorneys at Legal Momentum, a women's legal advocacy group in New York, say the two distinct issues at stake in the cases--pregnancy discrimination and recourse for sexual harassment--carry huge implications for women.

They say other open Supreme Court cases--touching on the anti-bias education law Title IX and gun rights for abusive spouses--should also be high on every woman's radar.

"Only 30 years out from the Pregnancy Discrimination Act, so many women are still grappling with the ongoing financial effects of past overt discrimination," said Gillian Thomas, a senior staff attorney at Legal Momentum, noting that the problem will worsen as baby boomers retire and take stock of their finances. The pregnancy act was passed in 1978 as an amendment to Title VII.

Retirement Benefits Disrupted

The case on Wednesday involves four former employees of AT and T, the Dallas-based telecommunications provider, who didn't accrue company benefits while on pregnancy leave although benefits did continue for those on short-term disability.

After Congress passed the Pregnancy Discrimination Act in 1978, AT and T began giving pregnant employees equal treatment to other employees. But the company did not make the system retroactive to the years when the plaintiffs took their maternity leaves.

The question before the court is when discrimination begins: at the time of the discriminatory action--which in this case occurred before the pregnancy law was enacted--or at the time employees feel its effects, which was when they retired in the 1990s.

It is a similar question to one asked last year in the case of Lilly Ledbetter, a former employee of Goodyear Tire and Rubber Co., who was about to retire when she found out she had been paid substantially less than men with similar work situations.

Within a month of her retirement, Ledbetter filed a complaint with the Equal Employment Opportunity Commission, the government agency charged with resolving workplace discrimination complaints. But the Supreme Court ruled that Ledbetter's time for recourse was limited to 180 days after the discriminatory decision was made, not when she discovered the bias years later.

White House Sided With Employer

The Bush administration sided with the employer against Ledbetter in 2007.

In the current case, it also sided with the employer, saying AT and T did not have to abide with the 1978 pregnancy law before it was enacted.

Gillian Thomas, a senior attorney at Legal Momentum, said that the other Title VII case now before the court is also critical for women because sexual harassment is both prevalent and underreported. "If you're going to take away protections, you're just going to be guaranteeing that sexual harassment goes more underground," she said.

A 2006 American Association of University Women study indicated that nearly two-thirds of college students said they had been sexually harassed, even though less than 10 percent of victims reported it.

In the sexual harassment case, argued in October, Title VII's anti-retaliation provision--which protects employees who allege discrimination from reprisal--stood for review.

In the case--Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn.--county officials investigated allegations of sexual harassment against Gene Hughes, a supervisor in the company's payroll department. Investigators asked Vicky Crawford, a subordinate of Hughes, about his alleged behavior, and she reported that Hughes had harassed her as well as other employees.

Hughes was reprimanded, but Crawford and two other colleagues who spoke to investigators were fired.

Marcia Greenberger, co-chair of the Washington-based National Women's Law Center, hopes that precedent will help Crawford. If not, she said "a gaping hole will be torn in Title VII's coverage."

The bench could change in the course of these deliberations if one or more of the current justices retires--and replacements are confirmed--before June.

Obama Appointments Loom

In addition, the change in U.S. administrations in January, after President-elect Barack Obama is inaugurated, could have some influence over the court's deliberations; new officials at the Justice Department, for example, could draft court briefs and take different stands on the cases.

For the two current Title VII cases a key appointment will be that of associate attorney general, who manages civil rights cases and has not yet been named.

Last month, Obama picked former judge and prosecutor Eric Holder, an adviser in his campaign, to serve as attorney general. As the nation's chief lawyer, he sets the administration's legal agenda.

Another unnamed post--solicitor general--argues cases before the high court and drafts the arguments presented to the justices. This is a key legal position because he or she often shapes the administration's stand in cases and works to turn political positions into legal arguments.

In the maternity-benefits case coming up on Wednesday the current solicitor general, Gregory Garre, has presented a brief against the plaintiffs.

Other women's rights issues have also come before the court this fall and await rulings.

In November, the court heard a case to decide the actual scope of a gun ban for batterers that--despite being a federal law--has never been applied to all 50 states. If the court says Second Amendment gun rights trump victims' rights to safety, thousands of abusers could have new access to guns, which often turn domestic violence incidents into fatalities.

Last week, the court heard the case of 5-year-old Jacqueline Fitzgerald, who was told repeatedly by a third-grade boy to take off her underwear when she was wearing a skirt. Fitzgerald's parents complained, and her Barnstable, Mass., school conducted an investigation but took what the parents considered inadequate action to prevent further harassment.

The Fitzgeralds sued under Title IX, the 1978 law that guarantees equality for girls and women in sports and education, but lost in district court. They also brought a suit under a federal civil rights statute known as Section 1983, which has a weaker standard of proof and, unlike Title IX claims, enables plaintiffs to sue individuals as well as institutions.

The question before the court is whether the Fitzgeralds can bring suit under both statutes. If the judges rule that the Fitzgeralds cannot litigate their Title IX suit under Section 1983, then victims would have fewer remedies at their disposal to fight discrimination.

"Depending on what the court decides, it's going to affect the kinds of claims you can make, who you can sue and maybe even the amount of damages you can get," said Maya Raghu, a senior staff attorney at Legal Momentum.